Section 12(b) of Hindu Adoption and Maintenance act 1956
“Property vested before adoption cannot be divested and he will take along with him to his adopted family”.
Whether birth right of coparcenary interest is vesting or not?
What constitutes vesting and when it can be said that property already vested before adoption?
What property will the adopted son take along with him even after adoption?
In order to attract the 12(b) property must have been vested in the adopted son before adoption in his natural family.
What is said to be vested property.
The property on partition vested in a person who is not having sons. Such property in his hands is absolute.
There are number of authorities on the point that the coparcenary interest is not vesting. Ownership of coparcenary property is in the body of coparceners and no body can say that this is his property until there is partition. The following are the few full bench judgements.
1. February 26,1969 N. VENUGOPALA RAVI VARMA RAJAH Vs UNION OF INDIA
2. January 06,1995 ANNASAHEB BAPUSAHEB PATIL VIKAS G. DALVI NATHAL GHARAGE RAJARAM K. POWAR PANDURANG B. SARNOBAT Vs BALWANT ALIAS BALASAHEB BABUSAHEB PATIL RAMACHANDRA Y. DALVI RAJARAM A. GHARAGE DINKARRAO K. POWAR K. L. SARNOBAT
3. March 21,1967 COMMISSIONER OF INCOME TAX, PUNE Vs H. H. RAJA OF BHOR
4. COMMISSIONER OF INCOME TAX,BOMBAY Vs NANDILAL GANDALAL
5. April 08,1976 COMMISSIONER OF WEALTH TAX,WEST BENGAL Vs BISHWANATH CHATTERJEE
6. May 03,1977 CONTROLLER OF ESTATE. DUTY,MADRAS Vs ALLADI KUPPUSWAMY
7. April 05,1965 KALOORAM GOVINDRAM Vs COMMISSIONER OF INCOME TAX,MADHYA PRADESH NAGPUR AND BHARDARA
8. February 27,1980 KALYANI Vs NARAYANAN
9. August 09,1965 V. N. SARIN Vs AJIT KUMAR POPLAI
10. August 13,1964 POTTI LAKSHMI PERUMALLU Vs POTTI KRISHNAVENAMMA
11. August 04,1966 SATRUGHAN ISSER Vs SABUJPARI
12. March 23,1954 SRINIVAS KRISHNARAO KANGO Vs NARAYAN DEVJI KANGO
13. February 13,1969 STATE BANK OF INDIA Vs GHAMANDI RAM
14. March 19,1985 STATE OF MAHARASHTRA Vs NARAYAN RAO SHAM RAO DESHMUKH
15. May 03,1990 TARA CHAND Vs RAMPRASAD
16. November 29,1951 TIKAIT HARGOBIND PRASAD SINGH Vs PHALDANI KUMARI
The correct position of law is interpreted in these cases wherein it is held that vesting means indefeasible right is created. Such as partition before adoption in his natural family, which absolutely vest in him and such property is not divested on adoption.
The following judgments are laying down the correct law.
1. SANTOSH KUMAR JALAN ALIAS KANHAIYALAL JALAN vs CHANDRA KISHORE JALAN
In this case, the division bench held that
The right of a coparcener in a coparcenary property is undoubtedly a vested right, a right created by birth. However, interpreting the said proviso so as to include the interest of the coparcener in the coparcenary property, in my opinion, would be contrary to the main provision. The object of the proviso is to limit the application of the main provision and not to make it redundant.
In this case judges referred to Sawan Ram and Others Vs. Kala Wanti and Others, and held that the adopted child is replaced in the adopted family. If an adopted child thus is to inherit the estate of adoptive parents, can he at the same time inherit his share in the estate of his natural parents after adoption? it would completely nullify the main provision of Section 12, such interpretation cannot be accepted.
The court looking to the provision held that Proviso (b) interjects to protect his rights in any property which stood vested before the adoption. But it does not mean that the adoptee will continue to have same interest in the estate of the natural family which he had acquired by birth even though he is legally deemed to be member of the new family. That could not be the intention of the Legislature. The Legislature is supposed to be aware of the principles of Hindu Mitakshara Law. If the Legislature had intended to protect even the coparcenery interest of the adopted child, perhaps, proviso (b) would have been couched in different language. As it is, the proviso protects only the property which had vested in the adopted child before the adoption.
It is, however, noteworthy that the word "vested" is part of the clause "any property which vested". The question is whether the right of a coparcener in the coparcenary property vests in him any right in "any property". It is well settled that though a coparcener gets right by birth in the coparcenary property the said right or interest is liable to fluctuation increasing by the death of a coparcener and decreasing by birth of another coparcener. A coparcener has right to partition of the coparcenary property, he can even bring about separation in status by a unilateral declaration of his intention to separate from the family, and enjoy his share of the property after partition. But it is only after such partition that property Vests' in him. Till partition takes place he has only a right to joint possession and enjoyment of the property. There is a community of interest between all members of the joint family and every coparcener is entitled to joint possession and enjoyment of the coparcenary property. The ownership of the coparcenary properly vests in the whole body of the coparceners and not in a member of the family. While the family remains undivided, one cannot predicate the extent of his share in the Joint and undivided family. Indeed, as stated above he has fluctuating interest in the property liable to being increased or decreased by deaths and births in the family. These are the fundamentals of the Mitakshara Law of Hindu Coparcenary which is not open to any doubt or debate. In these premises, whether it can be said that "any property" had vested in the coparcener so as to attract Proviso (b) to Section 12. The answer, in my opinion, must be in the negative. What is vested in a coparcener before adoption, is his right of Joint possession and enjoyment of the coparcenary property, I hardly need point out the distinction between the right to joint possession and enjoyment and the right to exclusive possession and enjoyment of a particular property. According to me, what is saved under Proviso (b) is a property which had already vested in the adoptee before adoption by, say, inheritance, partition, bequeath, transfer etc., which alone can be said to vest in him, to the exclusion of others. The vesting of that property is not affected by adoption.
2. KHIDMAT SINGH Vs JOGINDER SINGH DEVGONDA RAYGONDA PATIL VS SHAMGONDA RAYGONDA PATIL SINCE DECD BY HIS HEIRS
Single judge of Punjab and Haryana high court held that
Section 30 of the Hindu Succession Act supports the view that coparcenary property is not vested in the coparcener. The legislature therefore included Section 30 with a view to enable a coparcener to dispose of his interest in the coparcenary property by Will or other testamentary, disposition. But for this enabling provision, that was not possible."
The view of Hon'ble Bombay High Court is based on the judgment of Hon'ble Supreme Court in the case of Dharma Shamrao Agalawe v. Pandurang Miragu Agalawe and others, AIR 1988 Supreme Court 845.
18. The interpretation given by the Hon'ble Bombay High deserves to be accepted, in view of Section 12 (b) of the Hindu Adoption and Maintenance Act, as this section talks of property which vested in the adopted son before adoption. The property covered under this section, would be the property which is vested, in adopted son absolutely as owner, and not a mere interest.
3. RANGAPPA VS CHANNAMMA
Since we have held that plaintiff No. 3 is the adopted son of Rangegowda and ceases to be the member of joint family of common propositor, Lakkaiah and defendant No. 1, he will not get any share in the schedule properties and as such, his appeal is liable to be dismissed.
4. R. V. PADMAVATHI Vs GANGARAPU SUDARSANA CHOWDARY
The Single bench of Andhra Pradesh held that followed the Devgonda Vs Shamgonda patil and Kunwar Lallajee Vs. Ram Dayal and Others of privy council, and held that the Adopted son is not entitled to share in the coparcenary property of his natural family as there is no vesting in him as the coparcenary property is unity of ownership and no vesting.
5. Devgonda Patil Vs. Shamagonda Patil
The Court held “ the words 'vested property' related to property where indefeasible rights were created and thus, held that it would relate to property where full ownership was conferred. Since there was no question of full ownership in case of coparcenary property, such property of the family of his birth could not be said to vest in a coparcener after his adoption.
Vested property is that property which property as on the date of his adoption vested in him by virtue of partition, or transfer etc and not coparcenary interest.
The following judgments which say that the coparcenary interest is also interest vested and they are against the settled law.
YARLAGADDA NAYUDAMMA VS GOVERNMENT OF ANDHRA PRADESH
MADALA YATHIRAJULU Vs MADALA CHINA ANANTHAIAH
G YOGESHWARAPPA @ YOGENDRA Vs MALLAMMA
PURUSHOTTAM DASS BANGUR Vs STATE
These are the judgements wherein it is held that by birth right to share in the coparcenary interest is vested so the courts held that that coparcenary undivided interest is taken by adopted to son with him. This is against the law declared by the apex court “When the coparceners are joint there is no vesting it is unity of ownership so vesting is wrongly interpreted in these judgments”.
There is no authoritative pronouncement on the point by the apex court on this point directly.
The adopted son will take with him the property which is vested in him absolutely. But he is not entitled for share in his natural family joint family/coparcenary property. Section 12(b) is not attracted if there was no partition in the natural family as on the date of his adoption and not vested absolutely in him by partition or by any mode of transfer including will.